Citation Nr: 18157584 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-16 072 DATE: December 13, 2018 ORDER Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT There was no pending claim for benefits at the time of the Veteran’s death. CONCLUSION OF LAW The criteria for payment of accrued benefits are not met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1970, to include service in the Republic of Vietnam. He died in February 2014. He is a recipient of the Purple Heart. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July and August 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Entitlement to accrued benefits Periodic monetary benefits to which a veteran was entitled at the time of death, under existing ratings or decisions, or based on evidence in the file at the date of death (i.e. accrued benefits) are to be paid on the death of the veteran to the first listed survivor of the following: surviving spouse, children (in equal shares), and dependent parents. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000(a)(1). To this end, a veteran must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision for a surviving spouse to be entitled to accrued benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). A claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5). A “finally adjudicated claim” is a claim that is adjudicated by VA as either allowed or disallowed is considered finally adjudicated by whichever of the following occurs first: (1) the expiration of the period in which to file a notice of disagreement; or (2) disposition on appellate review. 38 C.F.R. § 3.160(d). The appellant generally contends that accrued benefits are warranted. See July 2014 Application for Dependency and Indemnity Compensation by a Surviving Spouse. The Board finds that the appeal for accrued benefits must be denied because no claim or appeal was pending at the time of the Veteran’s death in February 2014. In the appellant’s April 2015 substantive appeal, she wrote that, “[o]n September 28, 2012, the United States Court of Appeals for Veterans Claims (Court) remanded the Veteran’s case for adjudicative actions by [the Board],” essentially arguing that an appeal was pending for consideration for accrued benefits at the time of the Veteran’s death. While, in a September 2012 Order, the Court did vacate a portion of a January 2012 Board decision as to the denial of an earlier effective date than December 11, 2007 for an award of total disability rating based upon individual unemployability (TDIU), see September 2012 Joint Motion for Remand, that appeal was subsequently denied in an unappealed June 2013 Board decision. The Board also observes that the remaining portion of the January 2012 Board decision, i.e., the Board’s denial of an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol abuse and depression prior to December 11, 2007, was left undisturbed in the September 2012 Court Order. Therefore, the January 2012 Board decision is final. 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. §§ 3.160(d), 20.1100 (2017). The claims file also does not contain any documents that could be construed as a formal or informal claim for benefits that were filed prior to the Veteran’s death that remained pending at the time of his death. Accordingly, the Board finds that no claim or appeal remained pending at the time of the Veteran’s death. For this reason, no accrued benefits are payable to the appellant. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board is cognizant that the AOJ has not made a substitution eligibility determination; however, given that there was no claim or appeal pending before VA at the time of the Veteran’s death for reasons articulated above, such does not impact the disposition reached herein. The Board is grateful for the Veteran’s honorable service and regrets that a more favorable outcome could not be reached. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded. The appellant generally contends that the Veteran’s death is due to his service. The Veteran’s death certificate lists the immediate cause of death as bladder cancer. Given that the record currently contains no medical opinion addressing any relationship between the Veteran’s death and his military service, to include his presumed exposure to herbicide agents due to his service in Vietnam during the Vietnam Era, see 38 C.F.R. § 3.307(a)(6), and/or his various service-connected disabilities. A remand is necessary to obtain one. Further, a February 2014 VA treatment note indicates that there may be outstanding private clinical records pertinent to the pending claim, given that the treating physician noted that the Veteran was seeking treatment from “St. John’s in Kearney” prior to his death. The AOJ should attempt to obtain these records. The matter is REMANDED for the following action: 1. Obtain any outstanding private and VA clinical records of the Veteran, to specifically include private treatment notes from “St. John’s in Kearney,” as referenced in a February 2014 VA treatment note. 2. Obtain a medical opinion from an appropriate examiner addressing whether there is any relationship between the Veteran’s death and his service. The examiner should furnish an opinion for the following questions: (A) Is it at least as likely as not (a probability of 50 percent or greater) that bladder cancer, listed on the Veteran’s death certificate as the immediate cause of death, had its onset during service or is otherwise causally related to the Veteran’s active service, to include his presumed exposure to herbicide agents? (B) Is it at least as likely as not (a probability of 50 percent or greater) that any of the Veteran’s service-connected conditions currently in effect, alone or in combination, caused or contributed substantially or materially to the Veteran’s death? (C) Is it at least as likely as not (a probability of 50 percent or greater) that bladder cancer was caused OR aggravated (beyond natural progression) by any of the Veteran’s service-connected conditions? A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the above, and any other development as may be indicated, the AOJ is to readjudicate the claim based on the entirety of the evidence of record. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel